ch 5 pt 2

Question 1

when will without prejudice not apply?

Answer 1

if info is disclosable for another reason,
peripheral matters,
communication pre-dispute,
negotiations to prevent dispute,
matters of detail once liability is admitted,
open offer,
material for discussion between experts directed by court,
hide something that should be in open communication

Question 2

can without prejudice apply where justice demands otherwise?

Answer 2

no

Question 3

9 cases where a court can view communications made with a view to settlement?

Answer 3

issue on terms of settlement or if settlement reached

issue on construction/interpretation of settlement

court consider agreement as to costs or damages

whether to set aside settlement due to fraud, undue influence or misrepresentation

whether an estoppel has arisen due to communication

if material relevant to separate later case

professional negligence

risk of serious harm to someone

in order to explain delay or to obtain relief from sanctions

ambiguous and serious case

Question 4

what will court mostly do if there is an allegation of serious misconduct?

Answer 4

uphold that communication should not be disclosed

Question 5

how can risk that confidentiality clause will be breached be restrained?

Answer 5

an injunction

Question 6

risk with who confidentiality doesn’t protect?

Answer 6

others present in the process

they can make something from ADR public

Question 7

confidentiality in negotiation?

Answer 7

lawyers=professional conduct responsibilities

others-need to be bound by contractual confidentiality

Question 8

confidentiality in mediation?

Answer 8

confidentiality term

lawyers=professional conduct responsibility

Question 9

confidentiality in experts, early neutral evaluation or expert determination?

Answer 9

info said to 3rd p need term in agreement on confidentiality

Question 10

confidentiality in arbitration?

Answer 10

principle of arbitration law=arbitration private and confidential
no express provisions from arbitration act 1996

Question 11

confidentiality in adjudicative process?

Answer 11

based on written agreement

include confidentiality term

Question 12

when will disclosure be permitted in arbitration?

Answer 12

consent
court grants permission
reasonably necessary for protection of interest of parties
interest of justice
statutory duty

Question 13

in adjudication can one party provide info to tribunal but not other side?

Answer 13

no

Question 14

3 times when confidentiality can be lost?

Answer 14

disclosure in litigation after ADR fails
call witness who was in ADR
application made for cost sanctions on the basis another party caused ADR to fail

Question 15

what will court normally do with application for a costs sanction?

Answer 15

limit itself to material that without prejudice doesn’t apply to